PESHAWAR: Peshawar High Court has commuted death sentence awarded to a convict to life imprisonment for killing four of his close family members including his father and brother in Nowshera district around six years ago.

A bench consisting of Justice Ishtiaq Ibrahim and Justice Sahibzada Asaduallah partially allowed the appeal filed by the convict named Zahoor, a resident of Balu area, by upholding his conviction by the trial court but reduced his sentence.

Interesting situation emerged as the convict entered into compromise with all the adult legal heirs of the deceased persons, whereas one of the legal heirs was a minor to whom he had to pay Diyat money. However, he claimed to be destitute having no money to deposit for the said minor legal heir.

The bench observed that in the light of available evidence, it arrived at the conclusion that the prosecution proved that the appellant committed murder of his father, brother, minor nephew and niece, therefore, it was a case where the provision of third proviso to section 338-E of Pakistan Penal Code, pertaining of Fasad-Fil Arz (mischief on earth) was attracted.

FIR of case was registered six years ago in Nowshera district

“Resultantly, we are not convinced to acquit the accused on the basis of partial compromise, rather are going to deal with his case under section 338-E PPC,” the bench observed.

An FIR of the occurrence was registered against Zahoor at Akbar Pura police station in Nowshera on April 17, 2017, under section 302 and 324 PPC. The complainant in the FIR was Ms Saira, wife of deceased Faqir Hussain.

She claimed that she along with her father-in-law Atlas Khan, husband Faqir Hussain, minor daughter Manahil, minor son Nisar, brothers-in-law Arshad Khan and Zahoor was present at house when an oral altercation took place between Zahoor and his father Atlas Khan. She stated that Zahoor wanted to sell a house belonging to Atlas Khan, whereas the later was reluctant to do so.

She said that after midnight, Zahoor opened indiscriminate firing on the inmates which resulted into death of the said four persons.

The trial court had convicted the appellant on November 12, 2019, and had sentenced him to death on four counts and also ordered him to pay compensation of Rs200,000 to legal heirs of each of the deceased persons.

Advocate Sajeed Afridi and Mohammad Nauman Khan represented the appellant whereas Barrister Amirullah Khan Chamkani appeared as amicus curiae to assist the court on law point whether in the light of partial compromise the appellant could be acquitted under Qisas and Diyat provisions of PPC.

During course of hearing of the appeal, the major legal heirs of all the four deceased persons affected a compromise with the appellant on their behalf as well as on behalf of a minor legal heir, however, the appellant was unable to pay share in Diyat to the extent of the minor legal heir named Yahya, a son of Faqir Hussain.

Sajeed Afridi requested the court to accept the appeal and order acquittal of the appellant on the basis of partial compromise. He said that the appellant was very poor and he had no resources to pay the Diyat amount to the minor legal heir.

In its 22-page detailed judgment, the bench referred to different judgments of the superior courts on the said point.

The bench observed that the punishment awarded to the appellant was under Ta’zir and not Qisas because the proof required for a case of Qisas under section 304 of PPC had not been produced before the trial court.

The bench further observed that as the instant case was a case of Ta’zir where compromise had been affected between the appellant and legal heirs of the deceased persons, that too during pendency of the appeal, therefore, in the light of the judgments of superior court the instant case was to be dealt with under section 338-E PPC, dealing with waiver or compounding of offences.

The court observed where an offence was waived or compounded, the court may in its discretion having regard to facts and circumstances of the case, acquit or award Tazir to the offender according to the nature of the offence.

Published in Dawn, October 30th, 2023